Webb v. Illinois Central Railroad Company

PETITIONER:Webb
RESPONDENT:Illinois Central Railroad Company
LOCATION:Congress

DOCKET NO.: 42
DECIDED BY:
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 352 US 512 (1957)
ARGUED: Dec 03, 1956
DECIDED: Feb 25, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – December 03, 1956 in Webb v. Illinois Central Railroad Company

Earl Warren:

— John W. Webb versus (Inaudible).

Mr. Rafferty —

Robert J. Rafferty:

Thank you, Your Honor.

Earl Warren:

— you may proceed.

Robert J. Rafferty:

May it please the Court.

This matter comes before Your Honors on a writ of certiorari directed to the Court of Appeals for the Seventh Circuit.

The petitioner, Mr. John Webb, was the plaintiff in an action brought in the Federal District Court in Chicago under the Federal Employers’ Liability Act against his employer, the Illinois Central Railroad Company.

A jury returned the verdict in his favor in the amount of $15,000.

The respondent or defendant filed the usual post-trial motions for judgment notwithstanding the verdict and for a new trial, both of which were denied.

And the railroad then took an appeal to the Court of Appeals which reversed the judgment of the trial court and directed that judgment be entered in favor of the railroad.

Mr. Webb, the petitioner was, at the time of the accident, a brakeman in the employment of the railroad, had been employed either in that capacity or as the section hand for approximately 25 years.

On July 2nd, 1952, his duties took him together with the members of his train crew to the community of Mount Olive, Illinois.

And at that point, Your Honors, there are certain tracks which are involved in this case in which are referred to in the Court of Appeals’ opinion.

If I may direct your attention to a photograph at page 112 of the record, it shows the track layout at the — quite in question.This document was the defendant’s exhibit which was submitted by agreement.

To the left to the telephone pole, Your Honors will see a track which is the I.C. main line track.

The track in the foreground — incidentally, you’re looking at the picture, you are looking north.

The track in the foreground which shows a switch lever and switch stand to the north of the stand is referred to in the record as the passing track.

And to the south of the stand, it’s referred to as the I.C. house track.

This is connected with the I.C. main line track by a crossover switch.

To the right is the track of a separate railroad, the L.& N. Railroad and Your Honors will note that it is also connected with the I.C. passing track and the I.C. house track.

It’s a little difficult to see that approximately six thigh length to the south of the switch stand is a small X and that is the point of the accident in this case.

Mr. Webb, on July 2nd, 1952 was standing at a point approximately 15 or 20 feet south of the house track switch when he observed a box car leaking green, and it was his duty to plug up that leak if possible.

And for that purpose, it was his intention to go back to the caboose and get a handful of ways to use to plug up this hole.

He turned about and according to his testimony he took one step, he put down his left foot.The left foot was caused to roll underneath him.

He lost his balance.

He fell down.

And on the ground, he observed what had caused him to fall.

It was the clinker which he described as about this size in appearance.

He stated that at that time he observed a hole indicating where the clinker had been before.

And he testified that the roadbed was soft and left footprints as he walked in it.

Robert J. Rafferty:

Now, this area of course is in the vicinity of a switch or a switch stand and the railroad then, that is a place where good footing is on the upmost important.

They get on and off moving cars at that point.

They work along side of moving cars at that point.

Approximately three weeks to a month before this accident happened, substantial changes had been made by the I.C. in its house track.

Prior to that time, the passing track had been raised and within three weeks to a month before, two section crews were put to work on this Mount Olive house track and they raised it about five inches, the track, the ties and the roadbed.

And they used about 15 cubic yards of unscreened cinders and chat in order to raise the roadbed.

The section foreman testified that the source of his material was a pile which had been left before when the house track was raised.

The record has not disclosed how long this pile remained in the vicinity.

The plaintiff, Mr. Webb, testified that it was also a customary place for the fireman of the Illinois Central Railroad to clean their fireboxes at this point.

The section foreman in testifying about the size of the clinkers which were in this pile indicated that some of them were approximately two inches in diameter but he said efforts were made to exclude clinkers of that size.

The evidence on the record also shows that the track was closed for a use of the trainman during the time the repairs were being made.

Three people testified with reference to the size of the clinker and whether or not it would constitute a proper item in the roadbed ballast.

But first was the plaintiff, Mr. Webb himself, who testified that he had been a former section hand and the clinkers of this size should not be used in a railroad roadbed because they would not pack down and would not give good footing.

The next man who testified on the subject was the defendant section foreman, Mr. Rector, who actually supervised and conducted the repairs of this location.

Mr. Rector testified that a clinker as described should not be used in a switch stand or switching area near a switch stand.

Mr. (Voice overlap) and the —

Stanley Reed:

Was it — was it of a size that they passed through the firebox breaks?

Robert J. Rafferty:

It was a fist size one, Your Honor.

I honestly cannot tell you whether that would pass through a —

Stanley Reed:

Of course, we don’t know where (Voice Overlap) —

Robert J. Rafferty:

No, we don’t Your Honor.

The record is sound in that respect whether or not that would pass through the firebox.

I submit, however, Your Honor, that there are two possible sources of the clinker, the pile which had existed before and which by the railroad submission did include clinkers of two in size which would be somewhat the approximation of a fist and also the possibility, of course, of them having come from a firebox.

Mr. Webb gave his statement from the — to the railroad, and there is a dispute existing between the parties as to whether or not the clinkering question was on top of the roadbed partially in or partially out of the roadbed.

The confusion arises because at one point he said, he did not notice whether or not the clinker was in or out of the roadbed.

I do believe, however, that he clarified that at a later time and his statement which was admitted in evidence, I think, also clarifies that point.

It appears like — it appears at page 111, and it says, “This track had been worked on shortly before this by the trainman and the cinders were stirred up and loose.

And this large clinker, about six inches in circumference, was buried in the loose cinders around it so that it was not discernible from those rests of the small loose cinders.

It looked like the surface was leveled and good enough footing, but this cinder being solid in the loose cinders caused my foot to turn as I stepped on it.

It turned my foot and caused me to fall.

Robert J. Rafferty:

So that I injured the cartilage in my knees as I fell.”

I respectfully submit, Your Honor, from the record as disclosed and the inference is favorable to the plaintiff at this stage.

He fell on a clinker embedded in a roadbed near the railroad switch stand.

The jury could have found that the source of the clinker was either the old pile which had been used and raised in the house track or a clinker from the respondent’s firebox.

The jury could have inferred that when the railroad raised its roadbed, five inches, a matter of three weeks before that the clinker was either placed in the roadbed at that time or not removed.

The evidence is positive that the area or that the materials used in the roadbed were not screened.

From that evidence the jury could conclude that the respondent was negligent in failing to furnish a safe place to work.

The Court of Appeals recognized all those facts and recognized that there was a possibility to use the language of the Court of Appeals that the clinker was embedded in the railroad roadbed.

But the — the Court of Appeals went far beyond the record and neglected to tell Your Honors that in looking at the photographs, you will see in the distance several small buildings, in the Court of Appeals at page 144 in the record and its opinion referred to those buildings.

It referred to the proximity of the tracks of the other railroad and referred to the fact that the record was found as to whether or not strangers frequent of the premises.

And therefore, concluded that there were possibilities that the respondent was guilty, but that no probabilities could be deduced from the evidence.

Presumably, because the plaintiff had not negated or eliminated the possibility that the L.& N. Railroad might have injected a clinker in some manner in the I.C. roadbed, presumably because it was possible that a stranger would have done the same thing.

And in our reply brief, I referred to several cases which at least in my opinion eliminate the question of whether or not the L.& N.Railroad injected the clinker in the roadbed.

For the reason that these cases hold that if one railroad used the tracks of another with its permission, they are responsible for the negligent of the railroad where State permit to use their tracks.

So in effect, it comes down to this.

Did a stranger put a clinker in the I.C. roadbed or did the I.C. Railroad or it’s vice principle, the L.& N. Railroad do that?

I submit that when the Court of Appeals search the record for a conflicting circumstantial evidence, they violated the mandate of this Court, in Lavender versus Kurn, Bailey versus Central Vermont and an innumerable line of cases which had been handed down by this Court.

As recently as April of this year in Schulz versus the Pennsylvania Railroad, the question of the — of a lower court searching the record for conflicting possibilities came before the Court and with the Court’s permission I will quote a small part of the opinion from page 526 at 350 U.S., “The courts below took this case from the jury because of a possibility that Schulz might have fallen on a particular spot where there happened to be no ice or that he might have fallen on a particular spot where there happened to be — or they might have fallen from the one bolt that was partially illuminated by shore lights.

Doubtless, the jury could have so found and the Court allowed it to perform its function.But it would not have been compelled to draw such inferences.”

And in this particular case, the jury could and did find that the I. C. Railroad was negligent in furnishing a safe place to work.

I admit the possibility, a remote one, it is true that a stranger might have come on the icy roadbed and buried a clinker.

It’s the most unlikely possibility, but it could exist.

That was a question for the jury to decide.

The jury found adversely to the respondent.

I respectfully submit that the Court of Appeals was wrong in raising the standard of proof of probabilities as opposed to possibilities.

Instead of following the mandate of this Court to allow the jury to decide if the inferences were reasonable, where the conflicting circumstantial evidence put the truth and it was in further error when it substitute its own interpretation of the evidence for that of a jury.

Earl Warren:

Mr. Deany.

Herbert J. Deany:

May it please the Court and Mr. Rafferty.

I would like to mention briefly several items that counsel had just mentioned first.

He says that the foreman — section foreman, Mr. Rector testified that when he found rocks or stones, two inches in diameter, that — that they made efforts to exclude those stones.

Herbert J. Deany:

I submit that that is not the record in this case.

The testimony in that behalf appears at page 73 of the record and starting there at page 140 of the record there and page 73.

The question “Now, to the best of your ability, can you indicate about the size of the cinders and the ballast that was cropped in?”

Answer “The cinders were pretty clean along with this chat that we gathered up.

I would say two inches in diameter would be about the largest.

Of course, I have no way of knowing exactly what about.”

Now, here’s the question that counsel has misstated.

Question “Well, now, is any particularly use made of larger cinders if any are found?”

Answer “We never use them if we can avoid it.

Of course, the larger cinders we take and either bury them or haul them away and dump them in a hole somewhere and dispose of them that way.”

In other words, that language there shows that a rock or a stone, two inches in diameter, is not too large for the customary use in railroad railway.

Now — next, he refers to the Schulz case, 250 U.S. 526, I believe it is.

Earl Warren:

Will you excuse me just a moment?

I —

Herbert J. Deany:

Yes, Your Honor.

Earl Warren:

— didn’t quite get your point there.

Herbert J. Deany:

All right, Your Honor.

Earl Warren:

The question was, “Well, now, in any particular — is any particular use made of larger cinders if any are found?”

Answer “We never use them if we can avoid it of course.

The larger cinders we take and either bury them or haul them away and dumped them in a hole some place and dispose of them that way.”

Now, just what did you say that language —

Herbert J. Deany:

I say, Your Honor —

Earl Warren:

— meant?

Herbert J. Deany:

Pardon me.

Earl Warren:

Yes.

Herbert J. Deany:

Mr. Chief Justice, I say that he testified here that two inches in diameter would be about the largest that they would use customarily.

Then the question is this.

Now — well, now, in any — is any particular use made of larger cinders if they are found?That means larger than the two inches in diameter.

Earl Warren:

Yes.

Herbert J. Deany:

And incidentally, a cinder about the size of a normal man’s fist is considerably larger than two inches in diameter.

Herbert J. Deany:

Two inches in diameter multiplied by pi and you’ve got about six inches for fraction holders.

Earl Warren:

Yes.

Harold Burton:

But doesn’t that just simply lead to the fact that they recognized it, there were some larger cinders around there, if there were, they shouldn’t be there and yet, this one was there?

Herbert J. Deany:

I would say not, Mr. Justice.

I would say it does not lead to that fact.

This is just a question as to what they would do if there were larger cinders that he found there when he was removing his ballast.

Tom C. Clark:

He said he buried it.

Herbert J. Deany:

He said he buried, that’s correct, buried it or in other way, this —

Tom C. Clark:

(Voice Overlap) either way?

Herbert J. Deany:

Either way, dispose of them.

No, he did not say it.

He said —

Tom C. Clark:

(Voice Overlap) —

Herbert J. Deany:

— that he would not use them in the right-of-way.

Tom C. Clark:

Next (Inaudible) was to haul them away.

Herbert J. Deany:

That’s right.

Tom C. Clark:

So if he buried them evidently that refers to burying (Inaudible) right-of-way itself.

Herbert J. Deany:

Well, then, it was the next question then, if you please, Mr. Justice Clark.

Question: “Are the larger cinders ever used in raising track?”

Answer: “No, sir.”

Is that — is that to your satisfaction?

Tom C. Clark:

No, I was just wondering whether or not the answer there, if it came across the center was over two inches, that would mean that they sometimes buried them right there —

Herbert J. Deany:

Oh, no, no.

Tom C. Clark:

(Voice Overlap) less than two inches.

Herbert J. Deany:

No, he says that — he said he makes a hole and puts them in there, a hole in some place or hauls them away.

But then he goes on to say that he never uses them.

Tom C. Clark:

(Inaudible)

Herbert J. Deany:

Yes, that’s right.

Hugo L. Black:

Why?

Did he say why?

Herbert J. Deany:

Well, for the very simple reason, it might make an unsafe right-of-way if it’s larger than that.

William J. Brennan, Jr.:

Well, couldn’t the jury at least — a reasonable man differ on what he meant by — when — when he said bury them —

Herbert J. Deany:

I would —

William J. Brennan, Jr.:

— that a reasonable man differ whether he meant bury them in the right-of-way or somewhere else?

Herbert J. Deany:

I would think not, Your Honor, but in particular, would that be true, Your Honor, where he goes on to say, “Are the largest cinders ever used in raising the track,” this job was a track raising operation.

William J. Brennan, Jr.:

Yes, but even — even with that.

Herbert J. Deany:

Yes.

And he says positively and categorically that they are never used in raising the track.

William J. Brennan, Jr.:

Do you think it would be unreasonable for a juror to infer from that (Voice Overlap) —

Herbert J. Deany:

I certainly do but I don’t know anything if it’d be unreasonable, Your Honor, but I think it would be absolutely contrary to the affirmative evidence in the record.

Tom C. Clark:

I thought the evidence was (Inaudible) cinders used in that particular track.

Herbert J. Deany:

There is one question there that he does say that that — those cinders and that chat was picked up on the passing track which is north of the switch leading to — from the main line to the house track.

It was extra ballast and Mr. Rector testified that that chat was in good condition.

And while we’re on that, we may go to page 77 of the record and I like to call your attention on what the evidence there is and this is during the cross-examination of Mr. Rector.

And at page 77 right above the — the page — record page 147.

Question “I understand you inspected this ballast.”

Answer “Yes, we load it by hand on the pushcarts and in that way we would watch the loading of it.

I did watch the loading of it.”

Question “Were you watching these four different man load shovel by shovel?”

Answer “Sure.

It was right there.

They were loading from both sides and I saw every shovel full.”

Question “And you never saw large cinders in that mixture at all?”

And the answer is, “No, sir.”

Now, there is positive testimony that this ballast was in good condition.

Now, going down further or you get to the question that’s screened.

It’s on the same page.

The question there is, “I asked you whether this ballast was screened.”

He says, “Screened, screen?

No, sir, I did not get the question.”

Herbert J. Deany:

So he does say it wasn’t screened.

But that doesn’t mean anything if his testimony is positive and it’s uncontradicted that the ballast was in good condition, then we got affirmative proof here that it was in good condition.

Hugo L. Black:

Did he say he saw every clinker?

Herbert J. Deany:

He said he saw every shovel full, Mr. Justice Black.[Laughter]

Hugo L. Black:

He didn’t say he saw every clinker, did he?

Herbert J. Deany:

No, that would be quite a job there, Your Honor, [Laughter] to see every clinker in the rail of right-of-way because there are millions and millions and oceans of clinkers in the railroad of right-of-way.

There are cinders right and not necessary clinkers.

However, I would say that one oversized clinker would come a long ways from establishing negligence or the lack of exercise of ordinary care in then getting a railroad right-of-way.

William J. Brennan, Jr.:

Well, there again might reasonable men not differ though from the fact that this concession that they were not screened, whether or not the steps taken to prevent the oversized clinkers getting into the roadbed are adequate for the purpose?

Herbert J. Deany:

Reasonable men might if there were some basis for it or if — if the evidence was not such as to overcome that possibility.

And here, we maintain that the evidence does overcome that possibility.

Hugo L. Black:

Was there evidence that he fell over a clinker?

Herbert J. Deany:

The evidence of the plaintiff is that he fell over a clinker.

Yes, Your Honor.

Hugo L. Black:

And I understand your evidence shows that one that’s not big enough to be dangerous wouldn’t be dangerous to a man so he wouldn’t fall over it.

Herbert J. Deany:

Well, which would indicate that the clinker probably wasn’t the size of the man’s fist, Your Honor.

And there’s plenty of reason —

Hugo L. Black:

But if there’s evidence that he fell over a clinker and they don’t fall over them, don’t fall over them, if — that’s normal and that would be evidence that they were not that small, wasn’t it?

Herbert J. Deany:

That would be not necessarily.

Hugo L. Black:

That would be an inference, wouldn’t it, if (Voice Overlap) —

Herbert J. Deany:

Not necessary.

I — it — it might — I don’t think it’s an inference here because you’re — you’re going too far.

You’re speculating too much here.

You’ve not only got to —

Hugo L. Black:

I understood you to say there was evidence that he fell over a clinker.

Herbert J. Deany:

Well, that’s what he testified to, Your Honor —

Hugo L. Black:

Well, that’s if —

Herbert J. Deany:

— and we got to admit that.

Hugo L. Black:

And there’s also evidence that a man is not likely to fall over a clinker that’s small.

Herbert J. Deany:

The evidence —

Hugo L. Black:

That’s your — that’s your defense, isn’t it?

Herbert J. Deany:

No, it isn’t, not by any means.

Hugo L. Black:

Well, one of your defense is this that they were so small, they were not dangerous, isn’t it?

Herbert J. Deany:

Well, the testimony and that’s the standard of railroading.

The testimony is that a rock or a stone to — up to two inches in diameter is in accordance with railroad standards acceptable for use in railroad right-of-way.

Hugo L. Black:

Not dangerous —

Herbert J. Deany:

And —

Hugo L. Black:

— you mean?

Herbert J. Deany:

Pardon me?

Hugo L. Black:

You mean not dangerous?

Herbert J. Deany:

I mean that it’s acceptable according to the custom —

Hugo L. Black:

Well, do you mean — you mean —

Herbert J. Deany:

— and the standard.

Hugo L. Black:

Is it dangerous?

What’s the evidence on that?

If it’s less than —

Herbert J. Deany:

There isn’t any evidence that two-inch in diameter rock is dangerous.

There is —

Hugo L. Black:

(Voice Overlap) —

Herbert J. Deany:

— evidence here that a rock, the size of a man’s fist, might be dangerous.

Hugo L. Black:

Whether — whether that would be one less than two inches, is there evidence that it’s dangerous or not dangerous?

Herbert J. Deany:

The evidence is that according to the standard of maintenance of track railroad, they use it and use it in accordance with the standard practice of railroad.

Hugo L. Black:

Well, then, there is no evidence whether it’s dangerous or not dangerous.

Herbert J. Deany:

No, not — not in that pretty terms, Your Honor, I would say.

Now —

Tom C. Clark:

Well, those that you mention so are so dangerous that they haul them away and put them into some other place wherein they never use it.

Herbert J. Deany:

That’s right.

That’s what — that’s what the record shows.

Tom C. Clark:

They only did the screening to see that there wasn’t any in there.

Herbert J. Deany:

A — the record shows that he looked at the screening before he picked it up and that the screenings were in good condition and a record further shows that he examined every shovel full of the ballast whether it was being loaded on the pushcart.

Herbert J. Deany:

I would say that’s rather strong evidence that there wasn’t any clinker in this ballast at that time.

Earl Warren:

But the clinker —

(Voice Overlap) —

Earl Warren:

Oh, pardon me.

But the clinker the size of your fist be concealed in a full — full shovel full of clinkers?

Herbert J. Deany:

Well, it might be.

I would say I don’t —

Earl Warren:

He believed that if he saw (Voice Overlap) —

Herbert J. Deany:

I wouldn’t think of that.

I wouldn’t think it would be very likely too, Your Honor, but at the same time, I couldn’t say it would be impossible.

Earl Warren:

No, I would — that just bore on whether — whether the jury would have the right to determine even though they did see, even though this man did inspect every — every shovel full that there might have been one in there.

Herbert J. Deany:

Well, down to that.

It is the position of this defendant that this is nothing but — fundamentally nothing but an ordinary negligence, common law negligence action.

It’s true that this action is brought under the Federal Employers’ Liability Act.

But the Federal Employers’ Liability Act while it does modify in some respects the theory of negligence action, it does not modify in any respect the concept of common law negligence, except — so far it is modified by the prohibition against assumption of risk and substituting compared of negligence for cause instead of — instead of contributory negligence being a complete defense.

Stanley Reed:

Does the record show whether this ballast was screened or not?

Herbert J. Deany:

The record does not shows — does not show that it was screened at this particular movement.

That ballast, Your Honor, was moved in sometime before that when they are raising the track, the passing track and that was surplus ballast that is up there in the passing track and it is picked up there, 15 yards of it, because it was surplus and at that time it was in good condition and it’s moved on.

Earl Warren:

Well, Mr. Deany, it shows that it was not screened, doesn’t it?

Herbert J. Deany:

The answer to that is —

Earl Warren:

Does the record show that it was not screened?

Herbert J. Deany:

Yes, Your Honor, that’s correct.

Earl Warren:

Well, I — I thought you will answer to Justice Reed that it didn’t show that it was screened.

But on the contrary, it shows it was not screened, isn’t that right?

Herbert J. Deany:

The answer to the question at that time, it was not screened at that time.

The record show — so shows.

Harold Burton:

Well, does it show as the screen when it’s moved in for the first ballast?

Herbert J. Deany:

It does not show that either way, Your Honor.

Now, if the — this be the law that there is no change in common law negligence made by the Federal Employees’ Liability Act.

Then in order for them to make a prima facie case here of negligence on a situation of this character, they must show at least three things.

Herbert J. Deany:

First, they must show that — well, at least one of three things I should say, it must show that this foreign object, and that’s what it would be, was placed in the ballast by the defendant at the time of his work.

Or they must show that this foreign object was in the ballast and that they had knowledge or were charged with knowledge of its actual presence in the ballast.

Or in the third — the third thing of element is they must show by evidence that the standard, the customary standard of railroad practice which is the practice that governs an ordinary care was violated in this case.

Now, we submit that there isn’t an iota of proof on anyone of those three things.

Hugo L. Black:

So where does the — where does the cinders on the railroad track usually come from?

Herbert J. Deany:

Well, they — they might come from —

Hugo L. Black:

Where do they usually come from?

Herbert J. Deany:

Usually they are place there in a — in a roadbed by the railroad —

Hugo L. Black:

Is there any evidence here that — there was a stranger came up there with a pocket full of clinkers —

Herbert J. Deany:

No, there is —

Hugo L. Black:

— or seen around there before this happened?

Herbert J. Deany:

No, there is not, Your Honor.

(Inaudible)

Hugo L. Black:

Is there any evidence of any kind that would refute the idea that this clinker got on there the usual way?

Herbert J. Deany:

The usual way?

No, there is not.

There is not.

And that’s our point that the burden is on them to show that.

Hugo L. Black:

Show that each way, the particular clinker came from on a railroad track?

Herbert J. Deany:

Have it work both ways, Mr. Justice Black.

You got to show — the plaintiff must show it and I suppose, it’s according to the theory that you infer.

Again, the railroad would have to show where each clinker comes and after all —

Hugo L. Black:

No, I — I suppose as a general rule of law that when you saw something happens nearly all the time on one particular circumstance and you show that the things there and it nearly always comes from the particular thing and the jury for the reason it defined that it came from that thing, doesn’t it?

Herbert J. Deany:

Well, I don’t think that is the — in line with the decisions of this Court, the previous decisions of this Court.

Hugo L. Black:

What decision?

Herbert J. Deany:

Well, the Patton here.

For instance, the Patton case in 179 U.S. that it wasn’t a cinder case of course but it was a case of a fireman whose duty it was at the end of his run to clean the side of his locomotive.

He went over to the roundhouse where it was loaded — located.

And going down from the engine, the step gave away and he fell to the ground.

Now, that today, of course, that would be — violates the Safety Appliance Act and the mere fact that that condition existed would establish negligence as a matter of law.

Herbert J. Deany:

But the Safety Appliance Act didn’t involve here and the language of that section for that case is very much in point on this question of negligence.

There, they indicate that this step had been inspected at various times in route so far as any of the employees of the railroad know.

There was nothing wrong there.

There was testimony by one railroad official who said that it would be possible for not to work loose when — when a locomotive was traversing a large area and that it might work loose and come to him, how did he notice?

However, the evidence was that it did come loose and the man did fall and you’ve got the same situation there that you got here.

You got evidence here that there was a rock there and this man did fall.

But you haven’t got — they didn’t have any evidence there that this condition had existed for even a minute before this man stepped on it.

And the Court told — this Court held that in the absence of a showing, positive evidence, affirmative evidence, that this condition was known to the railroad, caused by the railroad or that it existed for such a time as to charge him with the notice, there could be no liability.

And that is the situation you got here exactly.

Earl Warren:

What do you do with the case of Lavender versus Kurn, Mr. Deany?

Herbert J. Deany:

Lavender versus Kurn, that’s one of the cases he relies upon.

In Lavender versus Kurn, this Court held that there was sufficient probative facts to submit a question of fact to a jury here.

And that —

Earl Warren:

That’s true.

Herbert J. Deany:

— that — that is true too, Your Honor.

You may recall that there was a big mound of dirt and cinders on either side of that switch and there was also a car that went around the bin there and had a mail arm hanging — suspending from the side, its arched back and forth.

It went around and — while it should have been in the clear pointed a presence of this mound of dirt that elevated this man’s head so that — the — there was sufficient evidence there to show.

Now, that was the condition that was created by the railroads and was known by the railroads to be there and that is not that there’s no proof here that this condition was created by the railroad.

Earl Warren:

Well, I am reading from — from counsel’s brief in which he — he says this about the Lavender case.

The plaintiff’s decedent was killed in an unwitnessed accident.

Her theory was that the decedent was killed when struck on the head by a mail hook projecting from a backing train.

Herbert J. Deany:

That’s right.

Earl Warren:

The defendants contended that he had been murdered.

Strangers precluded the premises.

The mail hook showed no evidence of contact with a human body and there was evidence to show that it was physically and mathematically impossible for the hook to strike the decedent, yet, they let — let the case go to the jury on those facts.

Herbert J. Deany:

Yes, but —

Earl Warren:

Are those —

Herbert J. Deany:

I think, Your Honor — I know Your Honor is very busy but I’d — I’d like to have Your Honor read that case if you can because you’ll find, when you do, that the evident — that mathematical equation there was not exactly right.

You’ll find that — it refers to mound of dirt and cinders on either side of that switch which rose from 18 to 24 feet above the top of the railroad.

The rails are about seven inches from the ground that over hanging mail arm was 73 and one quarter, one-half inches above the rail.

Herbert J. Deany:

This man was 67 and a half inches tall and he happened to be on one of those mounds which he could have been.

That mail hook would have struck him exactly where the evidence indicated that it did strike it.

Hugo L. Black:

As I recall it, I — I may be wrong, but as I recall it, defense was that there a lot of bad people around close to that railroad.

Herbert J. Deany:

That’s correct.

That was in there too.

Hugo L. Black:

Someone might have slipped in there and killed him.

Herbert J. Deany:

That’s right.

Hugo L. Black:

Some claimed, he might have hit him on the back of the head and the court below held, as I recall it, that you couldn’t speculate on whether he was a stranger came in and killed him or whether he hit him.

His head was hit on by this thing.

Herbert J. Deany:

The Court — yes, that’s correct.

Hugo L. Black:

And this Court said a reasonable amount of speculation was sometimes absolutely essential and all the transactions are right, isn’t it?

Herbert J. Deany:

And there was sufficient probative facts in there, Your Honor, and properly sought, afford an inference there, but that — there’s no inferences warranted here by the evidence in this case.

Hugo L. Black:

There’s no inference —

Herbert J. Deany:

This Court —

Hugo L. Black:

— no inference when a man who’s walking along the railroad track whether the evidence assuming that that he has tripped over at something and he’s admitted that cinders of certain size on a railroad track are dangerous and it’s also has to be admitted, I assume, that nearly all of the cinders that ever get on the railroad track comes from the railroad.

You say that no reasonable man could draw an inference that (Voice Overlap) —

Herbert J. Deany:

No, I didn’t say that, Your Honor.

I’m — I’m sorry —

Hugo L. Black:

Well, you have to say —

Herbert J. Deany:

I didn’t mean to say that.

I might have —

Hugo L. Black:

(Voice Overlap) —

Herbert J. Deany:

I — I might have been advertently.

I did not mean to say that.

Hugo L. Black:

Well, don’t you have to say that to say there was not a case for the jury?

Herbert J. Deany:

No, I don’t Your Honor.

I — I say this that this is a negligent case and that the law — this man is not an — the railroad is not an insurer of this man’s safety or of a safe place to work.

I say that the law in this case is that a plaintiff to maintain his action must prove the elements that are incident to a common law negligent action.

Hugo L. Black:

He must present evidence, must he not, from which reasonable fair-minded men could draw the inference that it happened in a way he claimed?

Herbert J. Deany:

Yes, he must — to present evidence on all of the issues that existed and were necessary at common law except as to such modifications as are made in the common law negligence by the Federal Employers’ Liability Act.

Herbert J. Deany:

Now —

Stanley Reed:

Are there any — any standards for railroad ballast?

Herbert J. Deany:

The standards — their testimony here shows that standards up to two inches in diameter are proper.

Stanley Reed:

Well, what — what does that mean?

The ICC has the standard to that?

Herbert J. Deany:

No, no, it does not, Your Honor.

That’s the practice of this railroad and that’s the only evidence in this case.

You see, our trouble here is that — Mr. Justice Reed, is that they’re taken the position here that the mere fact that an accident happens and somebody died or is injured establishes a case and that isn’t true under the Federal Employees’ Liability Act.

This Court, the only charge in this case is section — subsection (6) (a) which alleges that it was the duty of the defendant, whether the defendant violated its duty and that it fail to furnish the plaintiff with a — fail to use extraordinary care to furnish the plaintiff when their reason — every safe place to work and to perform the duties of his employment.

That was denied.

That’s the only charge in here.

Now, you got a further instruction in this case.

It’s — instruction number one, it appears in page 97 of the record.

That instruction said that the burden is not upon the defendant to show that he’s not guilty of negligence charge but that the burden is on the plaintiff to prove as the negligence — the charge of negligence and that he must do so by the greater weight or requirements of the evidence.

That instruction wasn’t questioned as it finally was given.

Now, we’ve got the point here.

When plaintiff started this case, he had four charges of negligence in this case.

One was failed to furnish — to exercise ordinary care to furnish the plaintiff with a reason to safe place to work.

And by the way that’s the criterion that this Court uses in all of these cases.

Two, that the defendant negligently placed an oversized rock in its ballast at the time of these improvements.

Three that the defendant negligently inspected the equipment so that this rock was left in there, and four that the defendant violated its own rules and regulations.

Now, to close up all the evidence, the plaintiff voluntarily withdrew every one of these charges except the one.

In other words, the one that he rely so strongly here, namely, that the railroad company negligently placed a rock in this ballast was voluntarily withdrawn by him and that appears to close the plaintiff’s case in this record.

Now, what his reason for withdrawing that is now coming in and trying to rely on it is something that I cannot fathom personally.

But the only reason that they usually withdraw is because they fail to make a prima facie showing such as the negligence law requires and that’s what happened in this case.

His evidence and it must be affirmative evidence did not show what he charged and because of that he voluntarily withdraw it and relied upon the — paragraph (6) (a) of the complaint which alleged that it was — that the defendant violated it’s duty to exercise ordinary care to keep the premises safe where is the safe place to work for the plaintiff.

Now, there is also a question here as to whether or not this rock was a size of a man’s fist or whether as he said it was six inches in diameter or circumference rather.

Earl Warren:

You may finish that if you have a minute or so.

You might (Voice Overlap) —

Herbert J. Deany:

Well, I have several points, Your Honor.

Herbert J. Deany:

I —

Earl Warren:

Well, I don’t think I’ve raised —

Herbert J. Deany:

[Laughs]

Earl Warren:

— all of your points, but you may finish — you may finish that one, Mr. — Mr. Deany —

Herbert J. Deany:

All right.

Thank you, Your Honor.

Earl Warren:

— if you wish to make a moment to do it.

Herbert J. Deany:

Yes.

At the time, he testified on the road care.

He said, and the record showed at page 14, he was asked what the size of this rock was and he says, “I would — it was about the size of a man’s fist, I guess.”

Now, any statement previously taken and which was admitted by agreement and withdraw which was unsworn to do it at the time, he said that he stumbled over a rock that was two inches in diameter.

Now, two inches in diameter, multiplied by three and one (Inaudible) is considerably less than the circumference of a man’s fist.

The evidence further shows here that he fully understood and appreciated what is meant by the circumference instead of the diameter because on cross-examination, at the request of the — the railroad counsel, he took a tape measure and made a loop showing six inches in circumference and is — there — any question in the world about what he knew the difference between six inches in circumference and two inches in diameter.

Earl Warren:

Is there much difference —

Herbert J. Deany:

Yes, there is.

Earl Warren:

— between two inches in diameter and two —

Herbert J. Deany:

Well, it depends.

I think it would — in Your Honor’s case, there would be a mind too, and I think there would be in most railroad work now.

Earl Warren:

I see.

Herbert J. Deany:

Thank you.

Earl Warren:

Mr. —

Robert J. Rafferty:

I have only several points, Your Honor —

Earl Warren:

— Rafferty.

Robert J. Rafferty:

— I would like to raise.

Your Honor questioned Mr. Deany with reference to the shoveling of the cinders, 15 cubic feet into a cart and their foreman witnessing each shovel full.

This Court has held in Moore versus Chesapeake & Ohio Railroad that a jury may credit or discredit any part of a witness’s testimony as here is arriving its verdict.

And certainly, the jury would not be required to believe an incredible story of that type with two section crews working there that the headman stands there and watch shovel by shovel.

He also raised the question as to whether or not certain issues were withdrawn from the jury.

Paragraph (4), the record shows that paragraph (5), the complaint was still an issue in the case when the case went to the jury.

And prior with what happened, the occurrence here and complained of, defendants through its agents and servants had made repairs in the roadbed and ground adjacent thereto and carelessly and negligently placed a large clinkers and cinders are carelessly and negligently allowed and are moved to a large clinker remain in the said cinders.

Robert J. Rafferty:

That was an issue in the case that went to the jury.

Mr. Justice Reed asked the question with reference to the size of the clinker and I don’t think anybody would be better fitted to state whether or not a fist size clinker did or did not belong in a roadbed in the defendants own supervisor.

Mr. (Inaudible) who testified at page 87 of the record, well, I asked him this question, “In your opinion, Mr. (Inaudible) with the presence of an existed — a clinker the size of a man’s fist embedded in the cinders adjacent to a switch stand represent a safe place for a train to work?”

His answer was no.

Reference to Lavender versus Kurn, Your Honor, which you questioned Mr. Deany about, Lavender versus Kurn with two defendants, one was the owner of Illinois Central Railroad and made the same defense in that case they did here, speculation and conjecture.

The Court ruled against him and held those were matters of fact for the jury.

If a reasonable man could draw inferences from the record, the case should go to the jury.

I submit that was the type here and the Court of Appeals in setting up the standard of proof, requiring the plaintiff to prove the case by probabilities with an error and disregarded all the prior decisions of this Court.

Thank you.